Many fertility lawyers are not willing to draft surrogacy agreements for people pursuing traditional surrogacy arrangements. The legal risks are too great; the results, too unreliable.
Traditional surrogacy is when the surrogate not only carries the child, but also donates her eggs. She is the biological mother who carries the child with the intention of giving it to the intended parent(s) upon birth.
Traditional surrogacy is not very common in Ontario. Instead, most people go through gestational surrogacy.
Gestational surrogacy refers to arrangements in which the woman carrying the child is notbiologically related to the child. The egg is retrieved from the intended mother (the woman who will raise the child) or an egg donor.
There are good reasons why a person or couple would want to pursue traditional surrogacy over gestational surrogacy:
- It’s cheaper
- It’s easier
- It’s faster
For individuals and couples who need a surrogate and an egg donor to have a baby, traditional surrogacy is an obvious way to streamline the process.
However, traditional surrogacy is fraught with risk.
Risks of Traditional Surrogacy
The primary concern of intended parents and surrogates is that the other parties will change their minds.
There is not sufficient case law in Canada to state with absolute certainty what would happen if a traditional surrogate changed her mind. But there is a good chance that if she did, she would be recognized as a legal parent of the child and granted at least some legal rights. It is even possible she would be granted custody and that the sperm donor/intended father would have to pay child support.
Even if the parties are all in agreement, and even if the surrogate is a friend or relative, there is nonetheless a greater risk that the court order pertaining to legal parentage will not be granted in a traditional surrogacy arrangement versus a gestational surrogacy arrangement.
In the famous “Baby M” case from the 1980s, a New Jersey couple entered into a traditional surrogacy agreement. The sperm was from the intended father. After giving birth, the surrogate mother changed her mind about the agreement and refused to relinquish the child to the intended parents. The police eventually returned the child to the intended parents and the surrogate mother sued for custody. The agreement was ultimately not upheld; the child remained with the intended parents, and the surrogate was entitled to visitation and other legal rights.
While it is difficult for any woman to know in advance what it will be like to give up the child she has carried for nine months, many people believe that if a surrogate is biologically related to the child there is a greater risk of her changing her mind. From a legal perspective, if a surrogate is the genetic mother there is a much greater chance she would be successful in court in the event of a dispute.
Anecdotally speaking, traditional surrogacy makes many health professionals, surrogacy lawyers and judges uncomfortable.
To make matters more complicated, some people pursue traditional surrogacy without professional oversight.
With traditional surrogacy, some people attempt home insemination because:
(a) it is cheaper than paying for the assistance of a fertility clinic; and
(b) many clinics refuse to perform the insemination for traditional surrogates (because of the legal risks).
Home insemination introduces medical risks for the surrogate (the sperm has not been tested) and the baby (the surrogate might have health issues that could affect the pregnancy or health of the child).
Because it is often fertility clinics that require parties to obtain legal advice, and because many lawyers refuse to draft traditional surrogacy contracts, some arrangements are pursued without the involvement of surrogacy attorneys. Without legal advice there may not be a contract or parties may attempt to draft one themselves – a strategy that is almost guaranteed to call its enforceability into question. Without consulting a lawyer for the contract, people miss out on valuable legal advice about their rights and obligations.
This is what happened in 2011 when a New Brunswick woman acted as a traditional surrogate and did not receive legal advice. The intended parents separated and decided to terminate the relationship despite the fact that the surrogate was already pregnant (a very rare occurrence). The agreement did not sufficiently protect the surrogate’s rights. Had the parties spoken with their own lawyers they would have been advised that the surrogate was too young – under the Assisted Human Reproduction Act it was against the law for the intended parents to “counsel or induce” her to become a surrogate mother knowing that she was under 21 years of age. The surrogate would also have been advised in advance of her options in the event the intended parents changed their minds. After the birth she found adoptive parents, but it was undoubtedly a very stressful and painful experience for her.
In Canada there are very few cases of surrogacy situations gone wrong; this is not likely a result of good fortune, but rather a result of the good advice of surrogacy professionals – lawyers, doctors, psychological counsellors, agencies, and others in the field of assisted reproduction. Most of these professionals advise against traditional surrogacy.
Gestational surrogacy protects the interests of all parties involved better than traditional surrogacy. It increases the chance that the original intentions of the parties will match the outcome. Intended parents and surrogates considering traditional surrogacy should think twice before pursuing it.
through a difficult time?